Time was, at the outset of a case, a federal judge’s job was to be neutral and apply the law to the plaintiff’s allegations. Evaluating the truth of the claims would come later, and often would be reserved for a jury. With Ashcroft v. Iqbal, all that changed. An activist conservative majority of the Supreme Court gave a powerful new tool to their colleagues – dismiss the case from the start if you think the allegations are not “plausible.”
For many, especially those challenging discrimination and government misconduct, blind justice is giving way to biased injustice.
But history teaches that the court need not have the last word. Twenty years ago, a conservative majority of the court held that employees could not sue for racial harassment, and made it nearly impossible to bring cases with proven discriminatory impact without a smoking gun of intentional racism.
Congress acted to reverse those decisions in the Civil Rights Act of 1991, and it should have the courage to be so bold again.
The writer, a lawyer in private practice, is former legal director of the Center for Constitutional Rights, which submitted an amicus brief in Iqbal v. Ashcroft and is plaintiffs’ counsel in the related case Turkmen v. Ashcroft.